UNIVERSlTy Or CALIrOuf.'IA, 
LOS ANGELES 

UC SOUTH! KN R[ dlUNAl I IHHAHV I i-lM ITY 



AA 000 624 214 3 



JAN 8 1953 

LIBRARY 
GOVT. PUBS. RCCM 



CHARGES AGAINST LEBBEUS E. WILFLEY. JUDGE OF 
THE UNITED STATES COURT FOR CIILXA. AND 
■ PETITION FOR HIS REMOVAL FROM OFFICE. 



To THE President: 

I return herewith the paper submitted to you by Lorrin Andrews 
under date of November 19, 1907, entitled "Charges against Leb- 
beus R. Wilfley, Judge of the United States Court for China, and 
Petition for his Removal from Office," together with my opinion 
thereon pursuant to section 2 of Article II of the Constitution. 

A copy of the charges was sent to Judge Wilfley for such expla- 
nation or remark as he had to make, but before the paper could 
reach China he had left for the United States and did not receive 
any copy of the charges until he reached Washington on or after the 
13th of January. On the 30th of January Judge Wilfley handed me a 
memorandum regarding the charges, a copy of which I transmit 
herewith. 

On the 20th of February, after examining the copies of the records 
and official reports relevant to the subject, I notified Mr. Andrews 
that I would consider any further statements or proofs which he 
wished to submit and would hear any oral statements that he wished 
to make, on a specified day. He replied, through the Honorable 
George E. Waldo, that he would be otherwise engaged on that 
day, without, however, asking that another time be set. Neverthe- 
less, I did set another day and gave Mr. Andrews notice through 
Mr. Waldo that I would hear him then, and received a reply that 
Mr. Andrews' papers were before a committee of the House of Rep- 
resentatives — still without asking for any different time for the hear- 
ing. I assume, therefore, that no further hearing is desired, and that 
the matter is to be disposed of by you upon the papers already 
presented, and the official records. 

Stripped of the epithets and expressions of feeling and opinion 
on the part of the petitioner and immaterial statements which do 
not enter into the substance, the charges are as follows: 

First. That the Judge prevented six American lawyers in Shang- 
hai from practicing in the United States Court for China by means of 
requiring them to pass an examination as a condition of admission 
to the bar of the court. 



It appears by the charge and by the official records that at the 
opening of the court a rule was promulgated providing for an exami- 
nation for admission to the bar. It further appears by the records 
that during the first year of the court there were fifteen applicants 
for examination, of whom nine passed and six failed to pass. It 
also appears that the petitioner, Mr. Andrews, was one of those who 
failed on his original examination, but that he was allowed a second 
opportunity, upon which he passed and was admitted to the bar. 

I have no doubt of the lawful authority of the Judge to establish 
such a rule. It is one of the inherent powers of courts of justice to 
determine the way in which the qualifications for membership of the 
bar practicing before them shall be ascertained. The United States 
Court for China was created by the act of Congress of June 30, 1906, 
as a court of record, with general original jurisdiction and extensive 
appellate jurisdiction, and there is nothing in the statute to justify 
the conclusion that this customary power was withheld. The rule 
adopted was the same as the rule which is actually in force in a num- 
ber of American States. For example, members of the State and 
Federal bars in New York and Pennsylvania can not be admitted to 
the bar of New Jersey without passing an examination. The same 
is true of Kentucky, North Carolina, Rhode Island, Louisiana, and 
Kansas. 

I am not prepared to say that the conditions which led to the 
establishment of the new court for China, and with which it had to 
deal at the outset, were not such as to make it for the interest of 
justice to establish the rule followed in the States I have mentioned 
rather than some other rule. The Judge, who was there and knew 
the conditions, who was charged by law with the responsibility of 
inaugurating and conducting the court, and upon whom was imposed 
the duty of determining that question, was probably best qualified 
to determine. Congress can change the rule by legislation, but the 
President has no authority to review it. Even if you had power to 
review the decision of the court as to what would be the best rule 
for that court, and if you were to differ in opinion from the court, 
it would be idle to talk about punishing the Judge because of that 
difference of opinion. 

The second charge is, in substance, that the Judge permitted the 
District Attorney to practice in the court without passing the exam- 
ination, 

It would certainly have been very extraordinary if the Judge had 
refused to permit the District Attorney to practice. That officer 
had been appointed by the President, by and with the advice and 
consent of the Senate, pursuant to the statute creating the court, to 
represent the United States in trying and arguing causes in that 
court. 



YRL 



It appears that during the first few months, when lawyers were 
few, the District Attorney also appeared in private cases. During 
the latter part of the year his pul)lic business seems to have taken 
up his entire time. I suppose there are few district attorneys in the 
United States who do not also practice in private cases. There is 
no legal objection to it and no other objection, unless there is inter- 
ference with the public business. The only exceptions are probably 
to be found in the large cities, where the public business engrosses 
the entire time of the district attorneys. 

The third charge is that said Wilfley has by spoken and written 
words and by his actions libeled and defamed the petitioner and the 
other members of the American bar who failed to pass the examina- 
tion and charged them with being disreputable practitioners, and 
has secured the publication of articles in the public press to the 
same effect. 

This clearly is not a charge of official misconduct and it is no 
part of the onerous duties of the President to try libel suits against 
his appointees. Were it your duty to take cognizance of such 
charges there is not here any charge to which anyone can be called 
on to answer in any form. Without a statement of the articles 
charged to have been written or printed, so that it may be seen 
whether they were libelous, and so that the person charged may 
say whether he is responsible for them, and, if responsible, whether 
he maintains their truth, such a general charge as this is mere 
aspersion, upon which no action can properly be taken. 

The fourth charge is that Judge Wilfiey has commenced pro- 
ceedings to disbar the petitioner upon a charge of perjury in an affi- 
davit filed in the United States Court of Appeals of the Ninth Circuit, 
and that before bringing such proceedings the Judge had threatened 
to bring them in case this petitioner did not dissolve his partnership 
with one Brooks. 

Obviously, the (question whether this proceeding ouglit to have 
been brought is to be determined in the proceeding itself. The 
petitioner can not be disbarred for perjury without proof of the per- 
jury and a record of the proceeding against him, and upon that 
proof and record he will be entitled under the statute to the judg- 
ment of the Circuit Court of the United States for the Ninth Cir- 
cuit. The proper answer to such a charge is certainly not by an 
attempt to remove the Judge wiio directs the proceeding. Judge 
Wilfley informs me that it is not true that the proceeding was pre- 
ceded by any threat, but whether it was or not there would seem to 
be no offense involved in telling the person charged that it was going 
to be brought, and the Judge might well have considered and stated 
that uader circumstances looking toward reformation and good 
conduct he should refrain from brineinof it. 



The fifth charge is that the Judge misused and abused the pow- 
ers of the court in three specified proceedings: 

(i) That he ordered an American named Winklebach to appear 
before the British Court for China in a proceeding pending in that 
court. 

It appears that Winklebach was a necessary party in a case in 
which the Britisli court had jurisdiction because the other defend- 
ants were British subjects. As the various national courts having 
the same territorial jurisdiction in China can issue process only to 
their own nationals, it has been common to issue such orders as a 
matter of comity in aid of the proceeding in the other court. If 
Winklebach considered that the order was without authority, he 
could have moved to vacate it and could have appealed. He did 
neither. 

(2) That in' the case of M. J. Connell & Co. against Daly, a 
receiver was appointed of the defendant's business as a restaurant 
keeper without granting an adjournment, for which the defendant 
applied. 

(3) That in the case of Friede v. Getz Brothers & Co. the 
court refused an adjournment which ought to have been granted 
and proceeded with the case in the absence of the plaintiff. 

Both of these cases are simply cases of the exercise of judicial 
discretion, clearly within the power of tlie court and as to which the 
parties had the right of review by appeal. Neither of the parties 
seems to have asked for such a review. The action certainly can 
not be reviewed in this way. 

The sixth charge is that the Judge refused to accept bail from 
the American named Price, convicted of an assault with a deadly 
weapon, and after conviction and pending appeal. 

The Judge was quite right in refusing bail unless he considered 
that there was probable cause based upon doubt as to the correctness 
of the judgment. The new court exercises the jurisdiction formerly 
exercised by the United Minister to China, and as to that jurisdiction 
section 4095, United States Revised Statutes, expressly provides 
that an appeal to the Circuit Court of the Ninth Circuit "shall not 
operate as a stay of proceedings unless the Minister certifies that 
there is probable cause to grant the same, when the stay shall be 
such as the interests of justice may require." The refusal to grant 
the bail after conviction was in strict accordance both with the letter 
and the spirit of the law. Whether the judge was mistaken or not 
in thinking that there was no probable cause can not be determined 
without a critical examination of the record, but if he was mistaken 
on that subject that is no ground for removal. The petitioner is 
mistaken in supposing that bail could be allowed after conviction as 



a matter of course. It is not so very long since there was no appeal 
at all from a criminal conviction in the courts of the United States. 
An appeal is now allowed, and properly so, but it is not yet the law 
that a conviction means nothing and it ought not to be the law. 
This is especially true under the conditions existing in China. 

The seventh charge is that the Judge permitted the prosecuting 
attorney, Mr. Bassett, to act as interpreter of the defendant's testi- 
mony in a case against one Torres, a Filipino. 

There is no charge of any misinterpretation of the testimony, or 
of any error or injustice in the trial. The Judge himself had long 
lived in the Philippines and understands Spanish quite well; the 
defendant was represented by counsel who asked for no regular 
interpreter and made no objection and apparently was quitesatisfied 
to have the assistance of the District Attorney in helping the Judge 
to understand his client. Neither the defendant nor his counsel is 
now complaining. The charge seems to be fine drawn and without 
substance. 

Shortly before the presentation of these charges, Mr. Bassett, 
the United States Attorney, had mailed a report in the ordinary 
course of his duty, dated November ii, 1907, which has since been 
received at the Department of State. This report contains an official 
statement of the facts regarding a large part of the matters referred 
to in the charges, and I transmit it herewith. 

There is a broader view to be taken of this petition as a whole 
and of the proceedings of the United States Court for China, from 
which the petitioner has picked out certan details for criticism. 

There was a reason for the creation of the court, and an urgent 
reason, in the existence of conditions in Shanghai, and, to a less 
degree, in other treaty ports of China, discreditable to the I'nited 
States and humiliating to American self-respect. The foreign set- 
tlement of Shanghai is itself a considerable city, with many thousands 
of inhabitants from all the Western nations. In it there is no single 
tribunal which has jurisdiction for the administration of justice over 
all its inhabitants. The citizens of each nation are subject to the 
jurisdiction only of the judicial'officers of their own nation, and are 
exempt from interference from the judicial officers of any other 
nation. As a result of this peculiar arrangement the vice which 
seems to thrive in the atmosphere of the Orient has long tended to 
seek shelter under the flag of the country whose administration is 
the most lax and ineffective. American administration in Shanghai 
had long been notoriously lax and ineffective, and the gamblers and 
prostitutes of Shanghai generally flourished under the claim of 
American citizenship and the protection of American indifference. 
To such an extent had this gone that prostitutes generally in Shang- 



hai, and, to a considerable extent in the other cities, whether Ameri- 
can or not, were called American girls and the two expressions 
were practically synonymous. One of the principal causes urging 
to the formation of the new court was the necessity of doing away 
with this disgraceful condition of affairs. The evidence is over- 
whelming that Judge Wilfley has accomplished this work effectively 
and thoroughly and has cleared the American name from the dis- 
grace that rested upon it. It was not an easy task, and it could not 
be done except by the stern and active administration of justice. 
Such an administration necessarily creates resentment and enmity. 
The lawyers whose most liberal clients have been the gamblers and 
prostitutes of Shanghai never complained of the old order of things, 
but they are now full of bitterness against the Judge, who has driven 
their clients out of business, but the decent and virtuous Americans 
in Shanghai were indignant and humiliated over the former condi- 
tions, and are now grateful and approving. The situation is clearly 
and temperately stated in a letter dated September 25, 1907, from 
Mr. W. W. Lockwood, associate secretary of the Young Men's 
Christian Association of Shanghai, to the Honorable Charles E. 
Watson, of Indiana, which was sent to me by Mr. Watson. 
Mr. Lockwood says: 

Judge Wilfley faced a very difficult condition of affairs when he established the 
new court a year ago. Things had been allowed to run loose for so long that there 
were those who believed that nothing could be done in the way. of restraint. But 
the court was not of this opinion. A further difficulty was that no body of law had 
been laid down for the guidance of the court, thus rendering the work of the court 
most difficult and taxing, but an examination of the careful decisions of the court 
will speak for itself. An even greater witness to the efficient work of this tribunal 
is the improved condition of affairs as far as Americans are concerned all over 
China. The Judge's work has been in the face of the determined opposition of the 
forces of evil in Shanghai and other places where the court sits on circuit. He, 
however, has the unanimous support of those who want to see the law enforced 
honestly and without partiality. The newspapers, both British and American, that 
speak for the community have been unanimous in their expression of approval of 
the court's work. 

Rev. James L. Barton, corresponding secretary of the Ainerican 
Board for Foreign Missions, wrote to me from Boston, under date 
of September 18, 1907, saying: - 

I have just returned to the office after having spent something like six months 
in China. * * * 

I wish also to express my great appreciation of the work of Judge Wilfley. I 
was in Shanghai, Tientsin, and Hankow, and saw with my own eyes how his work 
was saving the good name of America. The representatives of other powers spoke 
to me in high terms of what the Judge is doing, declaring that if that work con= 
tinues they would have to do something of the kind to protect theirgood names from 
the stain cast upon thern by profligates who claim citizenship for the protection it 
gives, 



^ 



I find on the files of the Department a letter sent to 5'ou by 
Messrs. Underwood & Underwood. It had been received by them 
from Mr. PZdward H. Foot, manager of their eastern department. 
He says: 

You have very likely noticed the establishment at Shanghai of an American 
Court for China. 

As to the need: The reception that I had at Shanghai when I came here before 
the establishment of the court last year to open our branch office was of this sort: 
"An American, are you? Well; the Americans furnish us our saloonkeepers and 
gamblers and run our houses of prostitution. What are you going into here?" 
This was particularly the attitude of the Chinese, and with others it was assumed 
that my business was probably something disreputable. Reference to a woman as 
an American was a distinct reflection on her character. 

As to the result: I returned to Shanghai in July of this year and have been here 
for several months. The attitude of the city toward Americans, and as I have felt 
it, has not merely changed; it is strikingly different. In no instance this year have 
I encountered the sneering reception of a year ago. So e.xtended has been the 
cleaning up or cleaning out of the tough element, considerable of which, driven 
from Manila, landed here, that American citizenship in Shanghai is to-day almost 
a certificate of respectability. 

Naturally, Judge Wilfley, who organized this court, has had to meet all sorts of 
misrepresentation and bitter opposition from the elements whose business and 
methods he has opposed. 

I find also a letter written to you June 11, 1907, by Daniel L. 
Rader, the editor of the Pacific Christian Advocate, of Portland, 
Oreg. He says: 

Before Judge Wilfley's appearance in China, the word "American girl" was a 
stench and an offense to such an extent that no self-respecting American woman 
would allow herself to be called an "American girl." 

The influence of those who claim to be American lawyers was of the most 
degrading quality. I am sure I speak advisedly when I say that these men were 
the greatest hindrance to the promotion of decency and virtue that the American 
missionaries, both men and women, encountered in the Empire. Judge Wilfley 
and Attorney Bassett found these conditions prevailing, and which were far worse 
than anything I can describe, when they arrived in Shanghai. 



Both Attorney Bassett and Judge Wilfley have gone about their work with a 
quiet dignity and an honest purpose which have brought honor to the United States 
Government and credit to our people. I am sure I am speaking within bounds 
when I say that nothing which has occurred in China in the past twenty-five years 
has had so wholesome an effect as the stand taken by the officers of the United 
States District Court for the district of China. 

Many other similar letters have come to the Deparlnienl, and 
there has also been received a memorial communicated to you by a 
committee appointed at a public meeting of Americans in Shanghai 



8 

and bearing the signatures of several hundreds of American resi- 
dents, among whom I recognize many familiar and most highly 
respectable names. The memorial says: 

We, the undersigned, American citizens residing in China, desire to put on 
record our emphatic approval of the course pursued by Judge L. R. Wilfley in the 
United States Court for China. 

He has already done much to drive out of China worthless and vicious charac- 
ters, and to close up disorderly houses. His court is proving a terror to evil-doers, 
and his high standard of justice is raising American prestige in China. 

We urge upon Congress the necessity of providing a suitable code of laws for 
the guidance of the United States Court in China, the present lack of which is a 
serious handicap to the court. 

The official reports to the Department are to the same effect. 
Mr. Ragsdale, the consul-general at Tientsin, reports: 

Now that we have a United States Court for China the matter has been taken 
up vigorously by the prosecuting attorney, and, if not interfered with, the cause of 
our shame will soon be a thing of the past. Nearly all of the undesirables have 
either left or will leave very shortly. The gamblers have either closed their places 
or have sold out, and all the so-called "American houses" have been closed or 
passed into the possession of other nationalities. 

In this connection I feel it my duty to express my appreciation of the new court. 
Whatever may have been the criticisms, the court should have the sympathy and 
support of the Department. The situation demanded such action as the court has 
taken. In no other way 'could the long-standing and deep-rooted disgrace be 
abolished. 

Mr. Rodgers, until last summer the consul-general at Shanghai, 
reports: 

I have the honor to report in connection with the arrest and prosecution by the 
United States Court for China of the keepers of American bawdy houses in Shang- 
hai that six have pleaded guilty and been fined f i,ooo Mexican. * * * The 
American inmates of these houses have left or are going, and although some may 
return or stay, it is well known that the day of the "American girl" as a prostitute 
in Shanghai is ended. * * * 

The prosecution of the American prostitutes has been received in Shanghai with 
varied sentiment, as was natural to expect. A certain class, which was quite 
agreeable to allowing America to assume and continue such a burden of odium, is 
vehement in denunciation, but on the other hand the respectable classes agree 
that the action of the court is entirely right. 

I beg to state, in this connection, that no such successful outcome could have 
been reached without the authority and process of the United States Court for 
China. 

Mr. Charles Denby, who succeeded Mr. Rodgers as consul- 
general at Shanghai, reports under date of September 13, 1907: 

It is the determination of the American attorneys in this city who have been 
affected by the Judge's rulings, and some of whom ha've a deep animosity against 
the Judge on account of action by him against them some years ago in Manila, to 



make every possible effort to overthrow the court. I wish, however, to confirm the 
opinion which has been expressed by every reputable American interest in China 
that the conduct of Judge Wilfley is worthy of the highest praise. 

Secretary Taft, upon his own personal inquiry during his recent 
visit to China, expressed his opinion in a public speech at Shanghai, 
which he confirmed in a letter tcj the Secretary of State. He said: 

Our Government was fortunate in the selection as the first judge of that court 
of a gentleman who had given four years' experience in the Orient as attorney- 
general of the Philippines, and who came to Shanghai with an intimate knowledge 
of the method of uniting, in one administration, the principles of the common law 
of the United States with the traditions and conditions of a foreign country. His 
policy in raising high the standard of admission to the bar and in promoting vigor- 
ous prosecutions of American violators of law, and the consequent elimination from 
this community of undesirable characters who have brought disgra'/t- ^upon the 
name of Americans in the cities of China, can not but commend its^^- t;veryone 
interested in the good name of the United States among the Chij^se people and 
with our brethren of other countries who live in China. It involves no small 
amount of courage and a great deal of common sense to deal with evils of this 
character and to rid the community of them. Interests which have fattened on 
abuses can not be readily disturbed without making a fight for their lives, and one 
who undertakes the work of cleansing and purifying must expect to meet resistance 
in libel and slander and the stirring up of official opposition based on misinforma- 
tion and evil report. I am glad to think that the Circuit Court for China has passed 
through its trial and that the satisfaction which its policy has brought to the Ameri- 
can and foreign communities in China and to the Chinese people will not be 
unknown to the Administration at Washington, at whose instance this court was 
first established. 

All of these evidences have been confirmed by numerous conver- 
sations with Americans returning from China who sought the State 
Department to express their satisfaction over the good work that 
has been done in Shanghai. 

The circumstances thus presented exhibit a motive for the attempt 
to drive Judge Wilfley from his position. They present a strong 
probability of misjudgment, exaggeration, and distortion of facts on 
the part of the lawyers who have personally suffered from the changed 
conditions. They make it clear that upon no trifling grounds should 
our Government incur the public rhisfortune which would be involved 
in putting the stamp of disapproval on the work for decency and 
righteousness that the United States Court for China has done. 

My opinion is that Judge Wilfley is entitled, not to condemnation 
but to commendation and high credit for his conduct in office, and 
that the charges against him should be dismissed. 

Respectfully submitted. 

Elihu Root. 

Department of State, 

Washington^ February 2g^ igo8. 



lO 



The White House, 
Washington, March 2, igoS. 

Sir: I have received and read your report of February 29 upon 
the charges submitted by Lorrin Andrews under date of November 
19, 1907, against Judge Wilfley; it appearing from your report that 
Congressman Waldo stands sponsor for these charges. I cordially 
concur in your finding, which is to the effect that Judge Wilfley is 
not only innocent but is attacked solely because of the fearlessness 
and integrity with which he has stamped out vice and crime in 
Shanghai. 

I inclose you a letter from Robert E. Lewis, secretary of the 
International Committee of the Young Men's Christian Association, 
who hasTi^'St returned from Shanghai, China, where he has resided 
for ten yeai .,, |jS foreign secretary of that body. This letter is in line 
with the quotations contained in your report, and the statements 
therein made in reference to the character and conduct of Judge 
Wilfley and his accusers are borne out by the statements of every 
reputable man, whether business man, missionary. Government 
agent, or representative of a philanthropic or religious body, who 
has written to me. It is clear that Judge Wilfley has been attacked 
not because he has done evil, but because he has done good. The 
assault on him is simply an impeachment of decency and zeal for 
the public good, and if successful would tend to cow and discourage 
every honest public servant who dares to withstand the forces 
banded together for evil, and would do grave damage to the honor 
and interest of our country in the Orient. If the attack were to 
succeed, the beneficiaries would be every keeper of a house of 
prostitution, every swindling lawyer, every man who lives by black- 
mail and corruption, in the cities of the Far East. These are the 
people whose hopes have been revived by the effort to overthrow 
this upright and fearless judge, who has already done so much for 
the good fame of America in China. It is not too much to say that 
this assault on Judge Wilfley, in the interest of the vicious and 
criminal classes, is a public scandal. 

I cordially approve your conclusions. 

Sincerely yours, 

Theodore Roosevelt 
Hon. Elihu Root, 

Secretary of State. 



1 1 

[Inclosure.] 

INTERNATIONAL COMMITTEE 
OF YOUNG MEN'S CHRISTIAN ASSOCIATIONS. 

ROBERT E. LEWIS, 
SECRETARY FOR SHANliHAI. 

New York City, 
J IVesl 2gth Street^ February 27, igoS. 

Mr. President: I have heard with astonishment that an attempt 
is being made to impeach Judge L. R. Wilfley of the United States 
Court for China. 

I have just returned from Shanghai, China, where I resided for 
ten years as the foreign secretary of the International Coir,mittee of 
Young Men's Christian Associations. ^^^ 

I am thoroughly familiar with the conditions wj^ffh confronted 
the United States Court, the methods adopted by-Jtidge Wilfley, and 
the results obtained. 

The vicious element among the American residents had been 
for so long uncurbed that they were a serious menace not only to 
our prestige but to our trade. As a result of the vigorous methods 
pursued by Judge Wilfley and the officers of the United States 
Court, the treaty ports of China have been largely rid of these bad 
elements, and no others dare to come in. 

The Judge is an honest, able, and fearless officer of the law, and 
has inaugurated a new era for Americans in China. He has the 
support of all Americans in China, except those who are defeated 
litigants and those who want the old regime of unpunished crime to 
continue. 

I do not hesitate to say that it is outrageous that a fearless and 
incorruptible judge should be, in the prosecution of his duties, thus 
harried by persons who have largely felt the strong hand of the law 
upon them ; and still more outrageous that even a single member of 
Congress should lend himself to the support of such unwarranted 
proceedings. 

I trust I may express the hope that after satisfying yourself of 
the correctness of these facts you will, Mr. President, give our Court 
in China the benefit of your powerful support. 

Very respectfully, your obedient servant, 

Robert E. Lewis, 
Secretary of the International Committee. 

The President, 

The White House. 



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